TASVINABEN PRATAPBHAI CHOKSHI Vs. ISMAIL IBRAHIM
HIGH COURT OF GUJARAT
TASVINABEN PRATAPBHAI CHOKSHI
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(1.) His Lordship after discussing the facts in F.A. No. 645 of 1975 ordered an additional compensation of Rs. 11 900 in second connected appeal F. A. No 646 of 1974. His Lordship held that for the pain and suffering and the consequences of permanent disability the fair compensation should be fixed at Rs. 8 0 of Rs. 5 0 So far as the loss of income and earning was concerned His Lordship further observed
(2.) . With regard to the loss of income or earnings the Tribunal awarded a nominal amount of Rs. 1 0 only on the ground that as it emerged from the evidence the claimant had to remain absent from his normal duties partly on account of his own treatment and partly because he had to be by the side of his wife. It was therefore not possible to hold that there was any loss of income for a period of six months or eight months on account of the injuries The Tribunal also took into consideration the fact that there were six partners in the firm including the claimant who were all brothers and in his absence the brothers attended to the work The Tribunal was also guided by the fact that the balance sheet for the year 1973 had not been prepared and though there was loss in 1972 one cannot say to what extent whether in 1973 there was loss or not though income-tax assessment would show that the average income of the claimant was mole than Rs. 1000/per month. In the opinion of the Tribunal the learned Advocate for the claimant had not attempted to show that these orders reflected loss of income as a result of the alleged absence of the claimant.
(3.) . In our opinion the Tribunal has failed to apply its mind to the fundamentals which guide the assessment of damages in personal injury cases. In such cases two main heads of compensation are (1) personal loss and (2) economic loss. The first head includes damages for pain and suffering loss of amenities personal inconvenience and discomfiture and social discomfiture or consciousness of loss. The second head would include damages in respect of pecuniary loss past and future such as loss of earning medical expenses and cost of nursing care as also loss of earning capacity where the injured is handicapped in the labour market. In the instant case the injuries have saddled the claimant with a permanent disability. His capacity to earn is bound to be affected thereby and the courts have to evaluate in terms of money the impact of this disability on the earning capacity of the claimant for the remainder of his life. This aspect is not at all considered by the Tribunal. It is true in the instant case the claimant was engaged in the business along with his other brothers and for sometime after the accident his other brothers attended to the business and therefore it may be that the business has not been markedly affected by the absence of the claimant in attending for sometime on account of the handicap which he faces because of the disability in attending to the business after he starts attending the same. There is no guarantee that the brothers will remain content with the contribution which the claimant may now and in future give with this handicap and discomfort. It cannot be gainsaid that the permanent disability and the resultant handicaps and discomforts are bound to tell upon the working capacity of the claimant. After all business requires not only supervision or physical attendance for a number of hours but it requires active interest application of mind resourcefulness and many other things which would be provided by a person who is physically and mentally fit to look after himself and look after the business. Therefore in the instant case if we look to the effect of handicaps discomforts on the claimant we find that this injury on the lower limp; may in due course of time lead to traumatic arthiritis after a period of 4 years after the accident even after the treatment. Again there is a slight deformity and he has 20 degrees limitation of bending of the hip. His other movements are restricted by 5 to 10 degrees. His flexion internal rotation manoruvre is painful and he has pain on exertion. With regard to the third injury that is fracture of the lateral condyle of right tibia he gets pain particularly on exertion. This permanent disability though of a partial nature is therefore bound to affect the earning capacity of the claimant. The claimant would not be able to attend to the business as efficiently and as cleverly as he used to do before the accident on account of the permanant disability. This therefore has to be evaluated in terms of money. It may not necessarily be commensurate with the percentage of disability but looking to the age of the claimant which is 42 at the time of the accident and a long remainder of life ahead and the nature and extent of the disability as earlier set out in our opinion the economic loss of prospective earning because of reduction in the earning capacity should be assessed at the rate of Rs. 100/per month. Using the multiplier of 15 the datum figure will come to Rs. 1200/and multiplying the same by the multiplier of 15 the amount awardable to the claimant on this Count for loss of future earning will come to Rs. 180 while the Tribunal has only awarded Rs. 1 0 on this count. Appeal allowed.;
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